Underground Construction - February 2021 - 12

WASHINGTONWATCH

Stephen Barlas | Washington Editor

Pipelines Sail into Political Winds in Washington
With environmentally friendly, Democratic
agency heads taking over U.S. regulatory
and independent agencies under the ascension of President Joe Biden, interstate gas
pipelines face a host of newly emboldened,
top-level appointees.
Many of them are gas pipeline skeptics, who will make their political weight
felt across federal permitting and safety
requirements. In that regard, the biggest
impact is likely to be at the Federal Energy
Regulatory Commission (FERC), which
is apt to give greater consideration to
prospective emissions of greenhouse gases
when considering applications for construction of new gas transmission pipelines.
Biden will appoint one of the two current
Democratic FERC commissioners as chairman. For pipelines, neither is a particularly
appetizing choice. Richard Glick has repeatedly opposed approval of new pipelines
because of their impact on greenhouse gas
emissions and for other reasons.
Allison Clements, a Democrat confirmed
by the Senate in November, in a prior life
was in charge of the Sustainable FERC
Project at the Natural Resources Defense
Fund (NRDC). Clements' successor at the
NRDC FERC Project is Gillian Giannetti,
who authored a blog in November 2019
headlined " Reform Is Long Overdue for
FERC's Gas Pipeline Reviews. "
FERC will continue to have a 3-2
Republican-to-Democrat advantage
until July 2021, when Biden will have
a chance to appoint a Democrat to
a Republican seat and allow Glick to
take FERC pipeline approval policy in a
potentially radical new direction.
But the winds of change will probably
blow before the FERC majority shifts to
3-2 Democratic. Giannetti thinks Glick
or Clements will immediately begin to
develop a climate test FERC can use when
considering applications for new pipeline
construction. In the past, FERC has been
unsure of the extent to which greenhouse
gas emissions can be considered, in part
because of federal court case rulings that
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FEBRUARY 2021 | UCONonline.com

left lots to be read between the lines.
However, Giannetti believes the
National Environmental Policy Act
(NEPA) and the Natural Gas Act (NGA)
make a clear case for FERC considering
" direct " GHG emissions - those created
by the construction of a project and
emissions from operation of the pipeline.
" Those are the lowest hanging fruits, " she
stated. Even though she admits those
direct emissions are a small part of GHG
emissions from a project, calculating those
would be a good first step, she added.
Giannetti thinks many in the pipeline
industry would agree with factoring direct
emissions into FERC's consideration of
pipeline applications. " I would be shocked
if Joan Dreskin disagreed with me, "
she stated, referring to the senior vice
president, secretary and general counsel
of the Interstate Natural Gas Association
of America (INGAA).
But Giannetti and other environmentalists believe that, ultimately, FERC needs
to come up with an assessment tool that
measures the lion's share of GHG emissions created by new pipelines - those from
upstream and downstream operations.
Dreskin commented that FERC already
considers direct emissions. " Pipeline project developers provide FERC with information regarding the direct GHG emissions
from their proposed projects, which
include emissions from pipeline construction and operation, " she responded. " FERC
has historically analyzed and reported
these emissions; current NEPA regulations,
however, no longer subdivide effects in this
manner. We anticipate FERC will continue
to consider what were previously referred
to as 'direct effects' in its analysis. "
The question is, however, how far does
current law allow FERC to go in blocking
new pipeline projects?
" Were FERC to find that a project is
not in the public interest because of GHG
emissions, this in my view would be a
seismic shift for the agency, and it would
have difficulty surviving judicial review, "

offered Emily Mallen, who closely follows
FERC activities as a partner with the
Washington law firm Sidley Austin LLP.
" That said, FERC could deny a pipeline
project under the NGA if it found lack of
public need, and Commissioner Glick's
dissents have also centered on whether a
particular project is really needed. "
Mallen believes FERC's consideration of
public necessity will become more onerous
and affiliate agreements likely will be
subject to greater scrutiny going forward.
" That said, " she added, " I can foresee no
scenario in which FERC will stop allowing
affiliate agreements to serve as a basis for
project need. But the project sponsors may
need to put more data into the record to
bolster that needs assessment. "
Mallen points out one other presumably
anti-pipeline factor which may rear its
head under a Democratic-controlled FERC:
environmental justice (EJ), which is the
potential impact of a proposed project on
communities of color.
" When it comes to EJ concerns raised
in pipeline and LNG certificate matters,
FERC has applied its own methodology
to the review that is based on the EPA's
Environmental Justice Mapping and
Screening (EJSCREEN) tool, " Mallen explained. " If modifications are made to the
EJSCREEN to strengthen it, this is certain
to impact future FERC analyses. Moreover,
we've seen dissents by Commissioner Glick
on FERC's approach to EJ review that
suggests the agency's approach could shift
under a Democratic-led Commission. "

EPA rule
Almost as certain as tougher reviews for
pipelines at FERC is the likelihood that
the Environmental Protection Agency
(EPA) will withdraw the Trump final
rule issued in September 2020, " Oil and
Natural Gas Sector: Emission Standards
for New, Reconstructed, and Modified
Sources Review, " referred to as the
" Methane Repeal Rule. "
It did two favorable things for interstate

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Underground Construction - February 2021

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